Satish Chandra, J.
1. This appeal arises out of a suit for ejectment under Section 202 of the U. P. Zamindari Abolition and Land Reforms Act on the fooling that the defendant appellant was an asami.
2. The plaintiff alleged that the ancestors had usufructuarily mortgaged the plots in dispute with the ancestors of the defendants under a document dated 21st July, 1869 for a sum of Rs. 50/-. The plaintiff wanted to reclaim possession and to that end he deposited the mortgage money of Rs. 50/- in court. The principal defence was that on the expiry of sixty years' period from the date of mortgage the same came to end and, therefore, the plaintiff could not claim the equity of redemption. The status of the defendants changed thereafter to hereditary tenants. Hence, they were not liable to be ejected as asamis.
3. The trial court accepted the defence and dismissed the suit. The findings Were, however, reversed on appeal where the suit was decreed. The appellate decree was confirmed by the Board of Revenue and also by a learned Single Judge of this Court who dismissed the writ petition filed by the appellant.
4. The principal plea raised before us Was that the, usufructuary mortgage dated 21st July, 1969 was a valid transaction to which Article 148 of the Limitation Act applied and, as such, after the expiry of sixty years' period the equity of redemption extinguished and the relationship of mortgagor and mortgagee came to an end. The plaintiff hence could not sue on the footing that the defendant were still mortgagees in possession.
5. In 1869 Recovery of Rents (Bengal) Act, 1859 (Act X of 1859) was in force. Before us there is a controversy whether this Act was applicable to the district of Banaras Where the land in dispute was situate. This Act has been designated as 'Recovery of Rents (Bengal) Act (Act X of 1859) in the commentary upon the Zamindari Abolition and Land Reforms Act by Mr. B. S. Shukla Vol. II Page 317. Here the laws repealed by this Act are mentioned. This act repealed several Regulations and Acts. For instance, it repealed Sections 9 and 10 of Regulation 51 of 1795 respecting ryotty potthas in the Province of Banaras. It also repealed Sections 1 to 20 of Regulation 5 of 1800 in respect of the erstwhile province of Banaras. In Gopal Pandey v. Purshottam Das, (1883) ILR 5 All 121, Mahmood, J., observed:--
''Whatever the rights of tenants may originally have been in these provinces, Act X of 1859 was the first legislative enactment which recognised or conferred the right of occupancy upon cultivators who had occupied their holdings for twelve years and upwards.' He also observed that under Section 6 of this Act as held by a Full Bench of the Calcutta High Court in Narendra Narayan Roy Chowdhry v. Ishan Chandra Sen, (1874) 13 Beng LR 286 that the right of occupancy was not transferable; that it was a right to be enjoyed by the person who held or cultivated and paid the rent and had done so for a period of twelve years. He also observed that it was both by this Court and by the High Court of Calcutta that local custom would entitle the occupancy tenant to transfer his holding.
6. These observations show that this Act is extant and applicable in the district of Banaras. The mortgage in the instant case was of the year 1869 when the Act of 1859 was in force. In our view that Act could govern the parties. A learned Single Judge of this Court in the case of Biswanath Singh v. Sunder, 1962 RD 321 held that the Act of 1859 was applicable in this State.
7. In this case it has further been held that the consensus of view was that the rights of occupancy tenant governed by the 1859 Act were not transferable except Under a custom.
8. The position, therefore, seems to be that the same position obtained in these provinces under the Act of 1859 as it did under the Act of 1881, which was the subject-matter of decision by a Full Bench in the case of Khiali Ram v. Nathulal, (1893) ILR 15 All 219. On a review of the various legislative enactments and decisions of this Court it was held in the case of Barhu Singh v. Kharpattu : AIR1956All337 :--
'A usufructuary mortgage of an occupancy holding created when the N. W. P. Act No. XII of 1881 was in force, must be treated as a valid transaction, but in a qualified sense, i.e., in the sense of sub-letting with a covenant that the mortgagor will not be entitled to recover possession without payment of the mortgage money; and further that a transfer of the occupancy holding was not created by the mortgage but a mere right to occupy the holding was created upon certain covenant. In this view of the matter it must be held that the mortgagee of an occupancy holding under the Rent Act of 1881 would have no right to claim extinguishment of the mortgagor's interests in the property by the enforcement of the rights created by the mortgage. If the mortgagee does not get any interest in the occupancy holding, he cannot claim to obtain that interest by expiry of the period of limitation fixed for the redemption of the mortgage. The right of redemption of the mortgagor in a usufructuary mortgage of this nature will therefore not be deemed to have become barred by lapse of time under Article 148 of the Limitation Act, and the mortgagor can institute a suit for possession at any time upon payment of the mortgage money, because his cause of action for recovery of possession would accrue upon his demand for possession upon payment of the mortgage money and refusal thereof by the mortgagee.'
This view was carried to a logical conclusion by a Full Bench of this Court in Samharu v. Dharmraj Pandey : AIR1970All350 . While interpreting Section 21 (1) (d) of the U. P. Zamindari Abolition and Land Reforms Act it was held that the word 'Mortgage' has been used in Section 21 (1) (d) of the U. P. Z. A. and L. R. Act in a comprehensive or a loose sense and the expression is not confined only to a valid mortgage. The effect of these authorities is that a transaction of the kind involved in the present case was not a mortgage properly so-called, but yet was a mortgage within meaning of Section 21 (1) (d) of the U. P. Z. A. and L. R. Act
9. Mr. Saxena for the appellant urged that since it has been held that the transaction was in a sense one of sub-letting the appellant became a sub-tenant and was entitled to adhivasi rights under Section 20 (a) (ii) of the Z. A. and L. R. Act, and that the authorities mentioned above treat the transaction of mortgage as one of sub-letting with an added covenant that he would be entitled to remain in possession till the mortgage money was paid. It will be seen that in none of the cases cited above, it has been held that the mortgagee acquires the status of a sub-tenant He is entitled to remain in possession as a person who has a right to occupy subject to the covenants of the transaction. None of the decided cases have held that such a transaction makes the mortgagee a sub-tenant within the meaning of various Tenancy Acts. The reason is not far to seek. Under a contract of sub-tenancy, the subtenant is liable to pay rent to the tenant-in-chief. Under the transaction of a mortgage, the mortgagee is not liable to pay any rent to the mortgagor. The liability to pay rent never accrues. The term of contract between the parties is essentially only to transfer the actual occupation on an agreement that the occupation would cease on the principal amount being paid. Secondly, unlike a sub-lease, in such mortgage no interest in the holding passes. Such a transaction has been designated as being of the nature of sub-letting, loosely with a view to take it outside the category of transfers to which the prohibitory provisions of the various Tenancy Acts apply. We are hence, unable to sustain the plea that the appellants would become adhivasis of the land on the footing that they were sub-tenants on the date immediately preceding the date of vesting.
10. We see no merit in the appeal which is accordingly dismissed with costs.